El-Masri v. Tenet

For some time – and with greatly increased frequency since September 11 – the CIA has made use of a procedure called “extraordinary rendition.” Under this program, the CIA transfers suspected terrorists to foreign countries that are known to use torture and other illegal interrogation techniques. Suspects are detained and interrogated either by U.S. personnel at U.S.-run detention facilities outside U.S. sovereign territory or, alternatively, are handed over to the custody of foreign agents for interrogation. In both instances, interrogation methods are employed that do not comport with federal and internationally recognized standards.

Khaled El-Masri is a German citizen of Lebanese descent. On December 31, 2003, while traveling in Macedonia for a holiday, he was detained and interrogated by Macedonian agents in a hotel room for 23 days. A group of men in then took him to an airport, where he was stripped, beaten, and raped. A group of men dressed in black and wearing ski masks – apparently a CIA rendition team – then bound and hooded him. He was eventually taken to Afghanistan, where he was detained for four more months in a cold, dirty cell and repeatedly interrogated. When he was finally released, he was flown to a hilltop in Albania and abandoned. Throughout his ordeal, he was not allowed to contact his family, a lawyer, a German consular official, or anyone else. Mr. El-Masri apparently has no terrorist ties, and American officials became aware that they had the wrong man early on in his detention. We filed a lawsuit in federal court against George Tenet, unnamed CIA employees, and the companies who owned and operated the planes used for Mr. El-Masri’s rendition. The suit claims violations of the Due Process Clause as well as international laws against prolonged detention and cruel and degrading treatment of civilians.

On May 12, 2006, Judge T.S. Ellis III heard oral arguments in El-Masri's case. The federal government asked the court to dismiss the case on grounds that the proceedings would jeopardize national security and reveal state secrets. On May 18, the federal court in Alexandria dismissed the case stating the CIA properly invoked the state secrets privilege. Soon thereafter the ACLU filed notice of its appeal. The appellate brief was filed at the U.S. Fourth Circuit Court of Appeals in Richmond on July 24 and the case was argued on November 28. A panel of the Fourth Circuit Court of Appeals on March 2, 2007 affirmed the lower court's ruling, holding that the state secrets privilege was validly invoked and the case properly dismissed. In May 2007, we filed a petition of certiorari with the U.S. Supreme court requesting it review the case. The petition was denied on October 9, 2007.